C-41/77

a Member State Insurance periods completed — Aggregation Claim for benefit — —

— Submission — Rules (Regulation No 1408/71 of the Council, Article 45)

Article 45 of Regulation No 1408/71 (i) the competent institution of the said must be understood to mean that where Member State shall take into account

the legislation of a Member State makes insurance periods completed under

the acquisition of a right to invalidity the legislation of any Member State benefit conditional upon the person as though they had been completed concerned having been entitled to under the legislation which it sickness benefit under that legislation for administers; a given period in immediately the (ii) the condition that a claim must be

proceding period —

Court of Justice, Queen's Bench Division (Divisional Court), for a preliminary

ruling in the proceedings pending before that court concerning John Patrick Kelly's application for an invalidity pension

THE QUEEN

v

A NATIONAL INSURANCE COMMISSIONER EX PARTE CHRISTINE MARGARET WARRY

I — Language of the Case: English.

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The facts, the procedure and the written At the time of his claim the relevant

observations submitted under Article 20 provision of the legislation in the United of the Protocol on the Statute of the Kingdom was section 3 (1) of the

1951. He went to Germany in July incapacity for work falling within that until period; and 1971 where he worked and was insured (b) unless he is over pensionable age and under the German insurance legislation has retired from regular employment, from August 1971 until he became ill in he shall be entitled to an invalidity June 1973. He continued to live in pension for any day of incapacity for Germany and received sickness benefit work in that period for which, by there from August 1973 until July 1974, virtue of (a) above, he is not entitled since when he has received a limited benefit.'

to sickness invalidity pension calculated by reference to his period of insurance in Germany. This provision has been replaced by a

He has now claimed also invalidity similar provision contained in section 15 pension in Great Britain. (1) of the Social Security Act 1975.

THE QUEEN v WARRY

Claims for invalidity benefit under the Where the legislation of a Member State legislation of the United Kingdom are makes the acquisition of a right to

dealt with by an insurance officer in the invalidity benefit conditional upon the

days. The local tribunal dismissed Mr Regulation (EEC) No 1408/71 relate? Kelly's appeal to it from the decision of (ii) do the provisions of

the insurance officer. (a) Article 45 or

(b) Article 46 The National Insurance Commissioner relate to such legislation? on 11 March 1976 allowed Mr Kelly's (iii) do all or any of the said Articles 40, appeal and decided that. 45 or 46 —

(a) enable such a condition to be '... invalidity benefit is, when not treated as wholly or partly reduced to nothing by the provisions for satisfied; or

the elimination of overlapping benefits (b) require such a condition to be hereinafter referred to, payable to the wholly or partly disregarded; claimant in accordance with the and if so to what extent?

provisions of Article 46 (2) of Council Pursuant to Article 20 of the Protocol on Regulation (EEC) No 1408/71 the Statute of the Court the insurance officer and the Commission submitted Although the National Insurance written observations. Mr Kelly, who was Commissioner is the final authority in notified of the proceedings, decided not the statutory benefit appeals system, the to be to submit any observation or High Court of Justice exercises, in represented before this Court. After accordance with general rules of British

JUDGMENT OF 9. 11. 1977 — CASE 41/77

benefit under the United Kingdom workers within the Community. This legislation are, first, that the person would involve a departure from the

concerned should have been entitled, in principles settled by the Court in a

the immediately period, to number of cases (Case 26/62 Van Gend preceding sickness benefit for 168 days, and, en Loos, [1963] ECR 1; Case 13/68

secondly, that he should have paid at Salgoil, [1968] ECR 453; Case 2/74 any time between his entry into insurance Reyners, [1974] ECR 631). Article 51 may under the Great Britain Scheme and the require the adoption by the Council of a expiry of the said 168 days a specified measure to provide that a period during number of contributions. The reference which a person has been entitled to

to a specified number of contributions sickness benefit in another Member State

National Insurance Act 1965). If a person In Case 20/75 (D'Amico, [1975] ECR makes a claim for benefit outside the 891) the Court held that Community prescribed time-limit, it is provided by legislation did not prohibit a rule of law section 49 (3) of the same act that he which required, for the acquisition of a

shall be disqualified for the receipt of right to early retirement pension, that the that benefit unless he can show the person concerned should have been insurance officer that he has good cause unemployed for a certain time and

for the delay. Whether insurance periods available to the unemployment bureau of

have been completed and whether or not the Member State in question. The a claim has been made in the prescribed present case should be considered by manner are questions for determination analogy with that case.

by the Secretary of State and not for determination by the insurance officer. As to the second question the insurance To acquire a right to invalidity benefit a officer submits that Article 45 of the

person must, in order to have been regulation does not apply. Although 'benefits'

requirement of national legislation in the the article was modified by Article 1 (13) field of social security which can be said of Regulation (EEC) No 2864/72 upon

to discourage freedom of movement for the accession of Denmark, whose

THE QUEEN v WARRY

legislation makes entitlement to benefit assimilated to a period of employment, dependent upon periods of residence. regard must be had to the legislation Article 45 is concerned with determining under which the period was

acquisition of a right to (or, as the case accomplished. In Case 33/75, Galati

may be, the retention or recovery of) ([1975] ECR 1323), Mr Advocate General benefit by taking periods of insurance or Reischl expressed the view that the term residence into account so far as is 'insurance periods' is clearly dependent

and the United Kingdom. to legislation containing conditions of

the type cited it would be sufficient that Article 45 in its original form referred to the law of the Member State concerned 'insurance periods'. As amended on the recognized that the condition related to accession of the three new Member an insurance period or periods of States and by Regulation (EEC) No residence for account to be taken of 2864/72 of the Council, it refers also to other such periods recognized as such by 'periods of residence', which expression, one or more other Member States. For under the provisions of Article 1 (s) (a) of Article 46 to apply, however, there must Regulation (EEC) No 1408/71 means be entitlement to benefit, either without periods of residence as defined or reference to Article 45 or by virtue of it. recognized as such by the legislation under which they were completed or The Commission proposes that the

deemed to have been completed. These questions referred by the High Court amendments were made to give effect to should be answered as follows: the Danish social security legislation. 1. The provisions of Article 51 of the

EEC Treaty do not preclude the

Three cases decided by the Court may be legislation of a Member State from of assistance in answering the questions the acquisition of a right to making asked. In Case 2/72, Salvatore Murru invalidity benefit conditional upon

([1972] ECR 333), the Court held that in the person concerned having been order to determine to what extent a entitled to sickness benefit under that

Regulation (EEC) No 1408/71 relate

to such legislation where the law of At the hearing on 27 September 1977

that Member State recognizes such the insurance officer, represented by Mr

conditions making benefit depend as Woolf, and the Commission of the

upon insurance periods or periods of European Communities, represented by residence and there are such periods its Agent, Mr Allen, presented oral

completed under the legislation of submissions.

2 Those questions arose within the context of an action concerning the right to

the payment of an invalidity pension under British legislation of a United Kingdom national who completed insurance periods in Great Britain for the

greater part of the period from 1933 to July 1971 and in the Federal Republic

of Germany from July 1971 to June 1973, when he fell ill.

3 The file shows that he continued to live in the Federal Republic of Germany and received sickness benefit there from August 1973 to June 1974, since

when he has received a limited invalidity pension calculated by reference to his period of insurance in Germany.

6 However, the National Insurance Commissioner allowed the claimant's

appeal against the decision of the local tribunal on the ground that 'invalidity benefit is, when not reduced nothing by the provisions for the elimination to

of overlapping benefits hereinafter referred to, payable to the claimant in

accordance with the provisions of Article 46 (2) of Council Regulation (EEC) 1408/71.'

No

7 However, the insurance officer applied to the Divisional Court of the Queen's Bench Division of the High Court of Justice for an order of certiorari to

material (a) the completion of insurance periods (b) the making of a claim

therefor in a prescribed manner and within a prescribed time —

(i) do the provisions of Article 51 of the Treaty of Rome preclude the

application of such a condition to a case to which Articles 40, 45 or 46 of

Regulation (EEC) No 1408/71 relate?

(ii) do the provisions of

and if so to what extent?

9 The questions are raised by the Divisional Court in the context of legislation under which the right to an invalidity pension is dependent upon entitlement

to sickness benefit for a period of 168 days.

10 The British legislation in force at the relevant time provided that in order to

gain entitlement to sickness benefit a claimant had to have paid contributions

over a certain period and to have made a claim for benefit in the prescribed

13 Since the question raised makes no reference to this condition of residence

the Court may assume that the Divisional Court considers it sufficient for the purposes of the requirements of the British legislation on invalidity pensions that the claimant be deemed to be entitled to sickness benefit for a period of

168 days, even though payment of that benefit was suspended by virtue of the

operation of a residence clause.

14 Article 18 of Regulation No 1408/71 provides that 'The competent institution

of a Member State whose legislation [on sickness benefits] makes the

15 Therefore, for the acquisition of the right to sickness benefit under British

legislation, insurance periods completed in the Federal Republic of Germany must be taken into account as if they were periods completed under British legislation.

16 However, the claimant, who at the relevant time resided in the Federal

Republic of Germany, was unable to receive payment of the benefit, since

Article 10 of Regulation No 1408/71, which waives residence clauses, does

not refer to sickness benefit.

workers who are nationals of Member States and should, to this end,

contribute towards the improvement of their standard living and of

conditions of employment, by guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various

national legislations and secondly social security benefits for workers and

their dependents regardless of their place of employment or of residence',

those being objectives which 'must be attained in particular by aggregation of all the periods taken into account under the various national legislations for

successively or alternately subject to the legislations of two or more Member

States, of which at least one is not of the type referred to in Article 37 (1), that is, that known as 'Type A', shall receive invalidity benefits under the

provisions of Chapter 3, which apply by analogy.

22 Therefore, where a worker has been successively subject to the legislations of two Member States, of which at least one is of Type B, the provisions of

Article 45 of the regulation, which form part of Chapter 3, are applicable by analogy to invalidity benefits.

23 Article 45 (1), as amended by the Act of Accession of the new Member States

Republic of Germany are taken into account, to the extent necessary, for the right

acquisition of the to invalidity benefits, as though they had been

completed under British legislation.

25 It follows that, irrespective of the provisions of Article 18 of the regulation, those insurance periods must be taken into account for the acquisition of the

right to sickness benefit, in so far as the national legislation in question

makes the right to invalidity benefits conditional upon entitlement to

27 Article 36 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 (OJ, English 1972 (I), p. 159) fixing the procedure for Special Edition

implementing Regulation (EEC) No 1408/71 provides that in order to receive benefits under Articles 40 to 51 of Regulation No 1408/71, except in the

cases referred to in Article 35 of Regulation No 574/72, 'the person

concerned shall submit a claim to the institution of the place of residence in

accordance with the procedure provided for by the legislation administered by institution'

that ... 'A claim for benefits sent to the institution of one

for invalidity benefit in accordance with that provision should have his claim refused on the ground that, at an earlier stage, he had not submitted a claim

for sickness benefit to the competent institution of another Member State.

30 Therefore, Article 45 of Regulation No 1408/71 must be understood to mean

that where the legislation of a Member State makes the acquisition of a right

to invalidity benefit conditional upon the person concerned having been

entitled to sickness benefit under that legislation for a given period in the

(ii) the condition that a claim must be made in a prescribed manner and

within a prescribed time shall be regarded as satisfied in so far as such a

claim has been duly made in accordance with the legislation of the State

of residence.

Costs

31 The costs incurred by the Commission, which has submitted observations to

in answer to the question referred to it by the High Court of Justice, Queen's Bench Division (Divisional Court), by order of 15 February 1977, hereby

rules:

Article 45 of Regulation No 1408/71 must be understood to mean

that where the legislation of a Member State makes the

acquisition of a right to invalidity benefit conditional upon the

person concerned having been entitled to sickness benefit under

(ii) the condition that a claim must be made in a prescribed

manner and within a prescribed time shall be regarded as

THE QUEEN v WARRY

satisfied in so far as such a claim has been duly made in

accordance with the legislation of the State of residence.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

sickness benefit there from August 1973

Introductory to July 1974, since when he has received a small German invalidity pension, This case before the Court by way comes calculated by reference to the relatively of a for a preliminary ruling by reference short period for which he was insured in a Divisional Court of the Queen's Bench Germany. Division of the High Court of Justice of

England and Wales. In 1974 an application was made on Mr Kelly's behalf to the Department of

The circumstances in which it does so Health and Social Security in England are these. for the payment to him of a British 'British'

invalidity pension. (I say rather Kingdom'

Mr John Patrick Kelly, who is a British than 'United because the